HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Vita Mucaria
Applicant
-and-
St. Clair College of Applied Arts & Technology, Angela Passador, and Irene Moore Davis
Respondents
DECISION
Adjudicator: Dawn J. Kershaw
Date: April 15, 2016
Citation: 2016 HRTO 487
Indexed as: Mucaria v. St. Clair College of Applied Arts & Technology
APPEARANCES
Vita Mucaria, Applicant
Self-represented
St. Clair College of Applied Arts & Technology, Angela Passador, and Irene Moore Davis, Respondents
Jean Marentette, Counsel
Introduction
1The applicant was a continuing education student in the Early Childhood Education (“ECE”) program at the respondent, St. Clair College of Applied Arts & Technology (“the respondent college”) when she was assigned to do a practicum placement (“practicum”) at a daycare in the summer of 2014. During her practicum, the applicant fell, injuring herself.
2The applicant does not deny she was accommodated at the daycare, but alleges she was discriminated against in employment by the respondent college and the personal respondents on the basis of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) because of harassment and a poisoned work environment. The respondents concede that the proper area of alleged discrimination is not employment but services.
3The applicant’s discrimination claims were not clearly articulated. However, it appeared from her Application and her evidence that she alleges that the personal respondent, Tanice Donaldson, who was the applicant’s practicum supervisor and a part-time employee of the respondent college, harassed her on the basis of disability by cyber-bullying her through e-mail after her fall, allegedly by asking her for too much information because she could not understand the applicant’s disability.
4The applicant also alleged Ms. Donaldson terminated the applicant’s practicum early because of her disability.
5Ms. Donaldson denied the applicant’s allegations. She asserted she asked for information about the applicant’s fall and her disability so she could ensure that the daycare accommodated the applicant’s needs and to ensure that her practicum grade was not impacted. She further asserted she terminated the applicant’s practicum early because of inappropriate comments the applicant made to children during the practicum, which the applicant denies.
6The personal respondent, Angela Passador, was at all relevant times the respondent college’s ECE program officer who set up the applicant’s practicum.
7The personal respondent, Irene Moore Davis, was at all relevant times the manager of the respondent college’s continuing education program who became involved in the applicant’s practicum after the applicant fell and Ms. Donaldson e-mailed her for some advice on how to deal with the issue.
8The respondents questioned whether the applicant had a disability. In addition, they denied harassing her on the basis of any disability, and asserted that her practicum was terminated not because of any disability but because of inappropriate comments she made to children.
9Although the applicant also alleged the daycare staff made negative comments to her after she told them she could not go for long walks anymore because of her fall neither the daycare nor any of its employees were respondents.
the law
10The relevant sections of the Code are as follows:
Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.
No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
10.(1) In Part I and in this Part,
“disability” means,
(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
(b) a condition of mental impairment or a developmental disability,
(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
(d) a mental disorder, or
(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; (“handicap”)
the evidence
11As part of the applicant’s ECE course requirements at the respondent college, the applicant was assigned a five week, Monday to Thursday practicum.
12As the ECE program officer, one of Ms. Passador’s duties is to arrange the practicums. She testified that prior to a practicum being arranged for a student, the student must complete one page of a 5 page medical form and have the rest completed by a doctor or nurse practitioner. The medical form includes details of any limitations the student may have. The student gives the completed form to the campus nurse who issues the student a yellow card called a Passport to Health, which includes the student’s name, the date on which the form was reviewed and any of the student’s limitations. Ms. Passador sees only the Passport to Health, which tells her whether or not a student has limitations that require accommodation. She testified that in the applicant’s case, no accommodation was required for this practicum, or for the prior year.
13On August 13, 2014, just over a week after she began her practicum, the applicant tripped and fell while out on a walk with the daycare children.
14After her fall, the applicant e-mailed Ms. Donaldson and for the first time told her that she should know that she has a long time disability where she loses oxygen when she overexerts herself like when taking very long walks. She also advised she sleeps with what the applicant called at different times in her testimony either a bipap or CPAP machine [I note that CPAP and bipap machines are very similar and are both used for sleep apnea so I assumed in the hearing that the applicant was referring to only one machine] because of her heart condition. The applicant e-mailed Ms. Donaldson again in the early evening of the same day and advised her she had been at home since about 10 a.m., had fixed herself up with her machine [presumably referring to her CPAP machine] and wondered if she should go back to the daycare in the morning. The applicant testified that after she fixed herself up with her machine she did not consider herself to have any ongoing disability.
15Ms. Donaldson responded to the applicant’s morning e-mail at approximately 8:30 p.m. and asked if the applicant was okay, and asked for her telephone number so she could tell the applicant the next steps. Later, she also responded to the applicant’s second e-mail and advised the applicant to stay home and rest. She also stated:
If you need to have some accommodations regarding how long the walks are let me know.
16The applicant did not give Ms. Donaldson her contact number because she did not want to. The applicant testified this was because she already was communicating by e-mail so questioned why she should. She also testified she wanted a paper trail. When asked why, the applicant replied “we are here [referring to the hearing], aren’t we?” When asked if she knew back when she did not give Ms. Donaldson her telephone number that she would file an Application, she replied she did not, but she liked to have things in writing.
17On August 14, 2014 the applicant e-mailed Ms. Donaldson and asked if she could return to the daycare and if she could make up her lost time by going in for the next two Fridays. Ms. Donaldson advised her it was fine as long as she got the daycare’s approval. The applicant testified she chose to go back to the daycare on August 15, 2014.
18On August 16, 2014 the applicant e-mailed Ms. Donaldson and advised she would not be able to go on long walks because of her disability. Ms. Donaldson responded by e-mail on August 18, 2014 and asked if the applicant had a doctor’s note to support this. She explained to the applicant in the e-mail that it is a practicum requirement to be involved in outdoor activities so in order to exempt the applicant, Ms. Donaldson would need a doctor’s note so her inability to participate would not impact her practicum grade. She further advised the applicant that in the meantime she would contact the daycare to see about whether they would have something beneficial for the applicant to do while the others were out walking.
19The applicant responded the same day by e-mail and advised Ms. Donaldson that she already had a handicapped sign on her car; that she had been sweeping and mopping while the others were walking; and that she could get a doctor’s note but the applicant was booked solid for the week. She further stated that if she was to “lose the necessity of air in my lungs while going for walks [she would] not be able to concentrate on the kids”. She went on to say that if she was someone in a wheelchair, Ms. Donaldson would not be asking her for a doctor’s note, but she would see what she could do.
20At this time Ms. Passador was on holidays. Ms. Passador testified that once she arranges a student’s practicum her work is done because then communication is between the student and the practicum supervisor, in this case, Ms. Donaldson. The applicant testified that her allegations of discrimination by Ms. Passador are that when the applicant fell, Ms. Passador was on holidays and the applicant alleges no one was there covering for her and Ms. Passador did not respond to her e-mail or telephone message about her fall.
21Ms. Donaldson testified that in light of the applicant’s e-mail she wanted some guidance and because Ms. Passador was on vacation, she contacted Ms. Moore Davis and asked her how to proceed, advising that she had not been made aware of any health conditions the applicant had.
22Ms. Moore Davis advised Ms. Donaldson that although she did not know what the applicant’s current condition was, the applicant did have an accommodation plan through the respondent college’s Disability Services office two years prior. She stated she was inclined to assume the applicant still had that accommodation plan, but that it was the applicant’s responsibility to provide it to her because staff at the respondent college does not share the plans. She further suggested it was unfair of the applicant to say that Ms. Donaldson would not be bugging her if she was in a wheelchair.
23Ms. Moore Davis told Ms. Donaldson she could not be expected to know of the applicant’s health conditions unless the applicant told her and the applicant should give Ms. Donaldson the information she has. She advised Ms. Donaldson to tell the applicant she did not know she had conditions that required accommodation and that the applicant should provide her with her accommodation plan as soon as possible because if the applicant had an accommodation plan, she would not need a doctor’s note as long as it clearly laid out the applicant’s needs.
24On August 19, 2014 Ms. Donaldson e-mailed the applicant and advised her she expects to know in advance of any accommodations a student requires so the accommodations can be made for the student to be successful. She pointed out she was treating the applicant the same way she would treat any student with or without a disability, visible or not. She also advised the applicant that the protocol she was accustomed to was that a student would provide her with a copy of his or her accommodation plan so they could work together to set up an action plan. She noted that until the applicant’s e-mail she was not aware that the applicant had any conditions that required accommodation. She advised the applicant that she would not need a doctor’s note if she had an accommodation plan.
25The applicant e-mailed Ms. Donaldson again in response and asked if she still wanted the doctor’s note because her appointment was scheduled for Thursday. She also stated that the only disability program she had was “Ontario Disability Support Plan” [“ODSP”], which had nothing to do with the respondent college. She stated that anything else was a privacy issue. The applicant testified she took issue with Ms. Donaldson asking her about private insurance or ODSP, although she admitted on cross-examination that the only mention of ODSP in the e-mail exchange was not by Ms. Donaldson but was by the applicant in her e-mail to Ms. Donaldson.
26On August 20, 2014, Ms. Donaldson again asked the applicant if she had an accommodation plan, and the applicant responded by asking Ms. Donaldson if she wanted the doctor’s note because she thought that originally was what she asked the applicant for.
27The applicant testified that Ms. Donaldson over the coming days wanted to know more and more, and gave her all this “hoopla” about whether or not she had an accommodation plan for 2014, which she testified was all for nothing because she did not have one in 2013 or 2014, although she admitted she did not tell Ms. Donaldson that. In her view, Ms. Donaldson made it into a big deal that the applicant used a CPAP machine even though it should only be a big deal for the applicant, not for Ms. Donaldson. She testified that no one needed to know that she used a sleep machine. The applicant testified if she had a disability people could see no one would have asked her for a doctor’s note.
28The applicant further testified these things should be private and the respondent college should not have asked twice about her disability and should have been more sensitive to her needs as a student. When asked what the respondent college should have done instead of what it did, the applicant testified the respondent college should not have asked about her private insurance or ODSP. In addition, the respondent college should not have terminated her practicum. The applicant also took issue with the fact that in her view the respondent college should have done an incident report with respect to her fall.
29When asked in relation to what disability the respondents discriminated against her, the applicant stated it was her heart condition and that she sleeps with a CPAP machine. On cross-examination, she stated it was her sleep apnea. The applicant then was asked if her heart or sleep apnea stopped her from going on walks before she fell, and she indicated they had not but that the fall made it impossible for her to go on walks anymore. When asked to clarify if that was because of her heart and sleep apnea, she responded that it was her feet, and that her heart did not stop her. She said the doctor’s note she ultimately brought in on August 25, 2014 was about her feet.
30On August 25, 2014 at the start of the applicant’s fourth week of her practicum, Ms. Donaldson attended the daycare centre and terminated the applicant’s practicum early. Ms. Donaldson testified she had called the daycare on August 21, 2014 to schedule a mid-term visit and spoke to Margaret Zabron, one of the daycare teachers, who told her that the applicant had said to a child that if it sucked the toy any harder, the child would give it a hickey. Ms. Zabron testified this was said in front of the child’s parent. Ms. Donaldson testified she was kind of shocked by this because of the sexual reference, and that the bigger concern was that it was said in front of the child’s parent.
31Ms. Donaldson testified that upon hearing about this comment, she thought about terminating the applicant’s practicum because the comment contravened the Student Guidelines for Early Childhood Education Field Placement (“guidelines”) with respect to sarcastic remarks, sexual comments and unprofessional behaviour.
32Ms. Donaldson testified that before attending the daycare on August 25, 2014, she spoke to Ms. Passador in her office about what she intended to do as she was looking for advice and support. Linda Hill who is a full-time faculty member at the respondent college also happened by and participated. Ms. Hill testified it was her opinion that the applicant’s sexualized comment meant she would automatically fail her practicum placement. She also testified that she believes the three of them also had a conversation about why the comment was not appropriate both from a child development perspective and in relation to the respondent college’s field placement handbook. All three of these witnesses testified there was no discussion about the applicant’s accommodation issues or disability.
33Ms. Donaldson testified that when she arrived at the daycare for the mid-term visit on August 25, 2014, intending to terminate the applicant’s practicum, Ms. Zabron told her about two other comments the applicant had made, namely that the applicant asked a child if she was upset because it was her time of the month and also that when a child was playing with the front of Ms. Zabron’s sweater, the applicant told the child one day she would have breasts, too. Ms. Zabron agreed she told Ms. Donaldson about the other two comments when she arrived, which may have been because they had not yet been said when she spoke to Ms. Donaldson on the telephone, although she could not remember when they were said.
34The applicant testified she was terminated for three reasons, namely her disability, the fact she was not a Canadian citizen (although this was not part of her Application) and the fact that two of the daycare children were going on vacation and it was convenient for the daycare to get rid of the applicant.
35When asked why she thought she was terminated because of her disability, the applicant said she showed the doctor’s note to Ms. Donaldson on August 25, 2014 and then was terminated. She initially denied Ms. Donaldson spoke to her that day about the comments she allegedly had made. She later admitted Ms. Donaldson may have brought up one comment, although when asked specifically about the three comments, she denied Ms. Donaldson spoke to her about any of them. Later in her testimony she admitted there was some discussion about the comments but denied she made them, because in her view if she had made them someone would have discussed them with her before that day. Further on in her testimony, she denied she had said there was some discussion about her comments. She testified that Ms. Donaldson did not talk to her about any comments, just some concerns. She also questioned why there was no investigation with respect to the comments. The applicant conceded that if she had made the comments attributed to her they were of a sexual nature and contrary to the ECE standards, so questioned why she would be so stupid as to say such things so close to the end of her practicum.
36Ms. Zabron testified with respect to why the comments were not discussed with the applicant earlier. Although she heard the comments and was the one who told Ms. Donaldson about them, she did not feel comfortable confronting the applicant because she did not know how the applicant would react, and she was not one of the daycare owners.
37Ms. Donaldson testified she did not speak to the applicant about the comments any earlier than she did because she did not find out about the first comment until August 21, 2014 and was meeting with the applicant on August 25, 2014 in any event.
38At the top of the mid-term evaluation is written that the practicum is terminated due to “unprofessional comments and conduct” and it includes specific reference to the hickey and time of the month comments. It also lists concerns, including several about the applicant’s interaction or non-interaction with the children. The mid-term evaluation also has an asterisk beside it which states, “Doctors [sic] note provided regarding not going on walks”. The applicant testified this last statement was the only true one on the mid-term evaluation.
39The applicant testified she refused to sign the mid-term evaluation because Ms. Donaldson lied about the performance issues. She testified Ms. Donaldson did not show her the full mid-term evaluation although she went through the statements in it with her. At another point, she denied Ms. Donaldson reviewed the mid-term evaluation with her.
40Ms. Donaldson testified she went through the mid-term evaluation with the applicant and informed her that her practicum would be terminated and why. She also put the applicant’s alleged statements to her. She testified the applicant responded that she did not know why one of the comments was inappropriate and did not remember making the other two. Ms. Donaldson testified she realized the applicant did not understand the seriousness of the comments.
41After reviewing the mid-term evaluation with the applicant, the applicant gave Ms. Donaldson the doctor’s note referred to in the mid-term evaluation form. Ms. Donaldson wrote on the evaluation form that the applicant provided it to her with respect to not going on long walks. She denied there was any discussion of the applicant’s disability at the mid-term evaluation meeting. When the applicant refused to sign the mid-term evaluation, Ms. Donaldson told the applicant she would give it to Ms. Passador.
42After the applicant’s practicum was terminated, the applicant e-mailed Ms. Passador and said she did not understand why her practicum was abruptly terminated that morning. Ms. Passador replied it was her understanding it was because of unacceptable and inappropriate comments she made to an infant in the classroom, and expected Ms. Donaldson had explained that to the applicant.
43The applicant also went to see Ms. Moore Davis the same day and claimed not to know why her practicum was terminated. She told Ms. Moore Davis she believed it was because of her request for accommodation for her disability. Ms. Moore Davis told the applicant she understood it was because of an inappropriate comment but told the applicant she did not have details.
44Ms. Moore Davis testified she then made further inquiries of Ms. Donaldson. Ms. Donaldson told Ms. Moore Davis by e-mail that the applicant’s practicum was terminated because of unprofessional behaviour and inappropriate comments. She explained that when she had called to schedule a time to do a mid-term visit, someone at the daycare told her about an inappropriate comment the applicant had made, as well as some concerns. When she arrived for the visit, she was told about additional comments.
45Ms. Donaldson advised Ms. Moore Davis that when she went to terminate the applicant’s practicum, she and the applicant did not discuss the applicant’s doctor’s note, although the applicant gave it to Ms. Donaldson. Ms. Donaldson explained that in a telephone call prior to the telephone call to arrange the mid-term visit she had spoken to someone at the daycare about the applicant not being able to go on long walks. She asked the daycare to provide the applicant with something else to do during those times because the applicant had told her that if she went on walks she may have a heart attack.
46Ms. Moore Davis testified that the applicant’s and Ms. Donaldson’s versions of the events on the day of termination were completely different. She testified that the applicant gave her the impression that she had no sense of why the practicum was terminated, whereas Ms. Donaldson said she went through the mid-term evaluation with her, even though the applicant would not sign off.
47On August 27, 2014, the applicant followed up with Ms. Moore Davis by e-mail and stated her belief that her practicum was terminated because of her disability. She stated that specific daycare duties that involved exertion meant she was in pain, needed her bipap and oxygen machines and rest, and that this was all because of her heart failure. She also stated that she guessed it did not matter to Ms. Moore Davis, and that she bet Ms. Moore Davis would have something different to say if the applicant walked with a cane or was in a wheelchair.
48Ms. Moore Davis subsequently e-mailed the applicant the same day and enclosed copies of the mid-term evaluation, the ECE Field Placement Guidelines and the Student Contract/Sign Off Sheets signed by the applicant on April 21, 2014. Ms. Moore Davis stated in her email that she did not understand why the applicant would not have been aware of the reason for the termination of her practicum because Ms. Donaldson reviewed the mid-term evaluation with the applicant that day, and the reasons for termination were stated very clearly in the mid-term evaluation. Ms. Moore Davis pointed out the specific sections of the ECE Field Placement Guidelines that set out what could result in a practicum being terminated, which included a student using sarcasm with the children or failing to observe relational boundaries, interact respectfully with children or conduct one’s self professionally.
49The applicant acknowledged that even if she did not know on August 25, 2014 why her practicum was terminated, she knew by August 27, 2014. She explained that she filed this Application because this was the second course she had failed in 2014. She testified she was ticked about failing the first practicum after her heart failure in September, 2013, and was also kind of ticked that she failed a second one. The applicant testified it seemed like a pattern, and she thought she was being discriminated against on the basis of her heart disability. When it was put to her that no one knew about her disability, she testified she filed an accommodation plan with the respondent college before. She then admitted that the accommodation plan had nothing to do with her heart.
analysis and decision
50The onus is on the applicant to establish on a balance of probabilities, that the respondent infringed her rights under the Code. Clear, convincing and cogent evidence is required in order to satisfy the probabilities test. See F.H. v. McDougall, 2008 SCC 53. Mere supposition or belief is not sufficient for the applicant to meet the burden of proof required of her.
51In this case, the applicant alleged that the respondents harassed her and the respondent college terminated her practicum on the basis of her disability.
52The applicant first must prove she has a disability as defined by the Code. Given the evidence, I am not convinced, on balance, that she does. Other than the doctor’s note that stated the applicant could not go on long walks, which resulted from the applicant’s fall, the applicant provided no medical documentation to any of the respondents and in fact provided them with a Passport to Health that stated the applicant had no limitations, even though the applicant’s evidence was that she had heart failure prior to she and her doctor completing that document. In addition, the applicant testified that once she fixed herself up with her machine, she did not consider herself to have an ongoing disability. In addition, the applicant at first said her disability was her heart and sleep apnea, but then said it was her feet. In any event, for the purposes of this Decision and because I am dismissing the application for separate reasons, I do not find it necessary to make the determination and I have assumed, without finding, that the applicant has a disability.
53I find in any event that the respondents did not harass the applicant in any way on the basis of any disability, nor was the applicant’s practicum terminated because of any disability. Instead it was terminated because of inappropriate comments she either made, or at the very least that were attributed to her.
54In this case I must assess the credibility of the witnesses and the credibility of the reason provided by the respondents for the applicant’s termination from her practicum. In order to resolve credibility issues, I am guided by the well-established principles stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (“Faryna”), which is often quoted by this Tribunal. The Court held at para. 357:
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions.
55I also considered the factors identified by the Tribunal in Cugliari v. Telefficiency Corporation, 2006 HRTO 7 at para. 26: the motives of the witnesses, the relationship of the witnesses to the parties, the internal consistency of their evidence, and inconsistencies and contradictions in relation to other witnesses’ evidence.
56The applicant’s evidence was inconsistent and contradictory on many of the factual issues in dispute. For example, the applicant testified that Ms. Donaldson did not go through the mid-term evaluation with her but contradicted that evidence later and admitted she did go through it. She denied knowing why her practicum was terminated even though she at times admitted Ms. Donaldson reviewed the mid-term evaluation with her in which the comments were referenced. Her evidence that she did not make any of the comments attributed to her also was in contrast to the evidence of both Ms. Zabron who heard and reported the comments, and the evidence of Ms. Donaldson who testified that the applicant admitted making one of the comments. In addition, the applicant testified Ms. Donaldson asked her about income support or private insurance even though the only reference to this in the e-mails is from the applicant, not from Ms. Donaldson. Given the problems with the credibility of the applicant’s evidence, I preferred the evidence of the respondent witnesses, which was consistent among them and also with the documentary evidence.
Harassment
57The applicant alleged Ms. Donaldson harassed her by cyber-bullying her by e-mail after she fell. It was clear from the evidence that the applicant did not like the fact that Ms. Donaldson asked her for a doctor’s note, and that her belief was that Ms. Donaldson would not have asked her for one if her disability had been visible such as being in a wheelchair. The applicant also did not appreciate Ms. Donaldson asking her about accommodation plans.
58However, the evidence does not support a finding that Ms. Donaldson’s e-mails constituted anything other than her attempt to find out what had happened to the applicant when she fell, whether she required any accommodation and how she could arrange for the applicant to do something useful during her practicum placement so that she would not fail the placement. It also was clear from the evidence that she asked the applicant about a prior accommodation plan to relieve her of the task of having to obtain a doctor’s note in light of the applicant’s e-mail to her telling her she was too busy that week to get one.
59In addition, the evidence does not support, and in fact belies, the applicant’s allegation that Ms. Donaldson asked the applicant about private insurance or ODSP. The only reference to ODSP was made by the applicant in an e-mail to Ms. Donaldson. The applicant also told Ms. Donaldson voluntarily that she had an accessible parking permit in her car. There was no evidence that Ms. Donaldson asked the applicant about any disability benefits she had.
60Finally, the fact that Ms. Donaldson asked the applicant for her telephone number in no way is evidence that she harassed the applicant. It was evident that Ms. Donaldson wished in good faith to speak with the applicant about her fall and her needs so as to assess whether any accommodation was necessary.
61With respect to the personal respondents, the applicant gave no evidence with respect to any harassment of her by them. The evidence shows that Ms. Donaldson got advice from Ms. Moore Davis who told her what to obtain from the applicant. However, there was no evidence to support any allegation that the information Ms. Moore Davis told Ms. Donaldson to seek constituted harassment on the basis of disability. It was an attempt to try and determine whether the applicant had limitations that required accommodation. With respect to Ms. Passador, there was no evidence that she had any part to play with respect to the information requested of the applicant. The fact that she was on vacation when the applicant fell and therefore was not available to respond to the applicant’s e-mail or telephone message does not constitute discrimination or harassment. As such, the applicant has not satisfied the onus on her to establish on a balance of probabilities that either of the personal respondents harassed her.
Termination of practicum
62With respect to the termination of the applicant’s practicum, Ms. Donaldson’s testimony that she terminated it because of the inappropriate comments was supported by the evidence of both Ms. Hill and Ms. Passador with whom Ms. Donaldson consulted prior to the termination. Ms. Hill was very clear that the comments warranted termination because of the sexualized nature of the comment and the inappropriateness of the comment both from a child development perspective and in relation to the respondent college’s guidelines. Ms. Donaldson also testified that she also thought the comment was in contravention of the guidelines. The evidence also was supported by the evidence of Ms. Zabron who is the daycare worker who both heard and reported the comments.
63I also accept Ms. Donaldson’s evidence that the issue of the applicant’s alleged disability was not discussed on the day of termination and was not a reason for it. Ms. Donaldson already had arranged with the daycare that the applicant could mop and sweep while the others were out walking, and the applicant testified that was acceptable to her.
64I also accept the evidence of Ms. Hill, Ms. Passador and Ms. Donaldson that there was no discussion among the three of them when discussing the termination of the applicant’s practicum of any disability or accommodation issues the applicant may have had. There was no evidence that the applicant’s practicum was terminated because of her disability.
65With respect to the personal respondents, Ms. Moore Davis was not involved in the termination of the applicant’s practicum or the decision to terminate. With respect to Ms. Passador, as indicated I accept her evidence that there was no discussion of any disability or accommodation issues the applicant may have had when discussing whether or not to terminate the applicant’s practicum.
66The applicant clearly believes her disability played a part in her termination decision, but her belief alone is not persuasive. The respondents provided an uncontroverted explanation of the circumstances that resulted in the termination of the applicant’s practicum. It is not my role to assess whether the termination was fair, but only to assess whether it was discriminatory.
67The respondents have provided me with a non-discriminatory explanation for the termination of the applicant’s practicum. As such, I find that the applicant has failed to meet her onus to prove, on a balance of probabilities, that her practicum was terminated because of any disability. I am satisfied that the respondents have established that the termination of the applicant’s practicum was for non-discriminatory reasons.
order
68The Application is dismissed.
Dated at Toronto, this 15th day of April, 2016.
“Signed By”
Dawn J. Kershaw
Vice-chair